On July 29, 2022, a webinar on the topic: “Resolving certain types of family disputes under martial law” was held as part of the training of lawyers. The speaker was Olga Volodymyrivna Kuharenko, a member of the Civil Law and Process Committee of the Bar Council of the Kyiv region. Below we bring to your attention the main theses from the webinar.
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1. Collection of alimony during the war
One of the most glaring problems in the field of family law in the conditions of martial law, as well as in peacetime, is the issue of alimony collection.
The obligation to pay alimony during the period of martial law has not disappeared, despite the rule regarding the termination of garnishment of wages, pensions, stipends and other income of the debtor does not apply to alimony legal relations. Thus, on March 15, 2022, the Law of Ukraine “On Amendments to Chapter XIII “Final and Transitional Provisions” of the Law of Ukraine “On Executive Proceedings” was adopted, which entered into force on March 26, 2022, which provides that for the period of martial law, the application of penalties is suspended for wages, pensions, stipends and other income of the debtor (except for decisions on collection of alimony and decisions for which debtors are citizens of the Russian Federation).
No changes have been made to the Family Code of Ukraine that affect the amount of alimony obligations or exemption from it, as well as exemption from liability in connection with non-payment of alimony.
The Family Code of Ukraine, in Article 180, enshrines the corresponding duty of both parents to support the child until he reaches the age of majority. Parents or other persons who raise a child must create such living conditions that will be sufficient for the physical, intellectual, moral, cultural, spiritual and social development of the child.
It is a false position that during the war alimony payers may not fulfill their obligations, including alimony. Martial law, being in military service or abroad, as well as not having a job, does not affect the parents’ obligation to support the child or other dependents. In addition, the liability of alimony payers for improper fulfillment of the obligation to pay alimony, all types of liability (penalties, fines, administrative and criminal liability) are valid and have not undergone changes during the war. Accordingly, failure to pay alimony during martial law does not exempt the alimony payer from liability.
In accordance with Part 1 of Article 196 of the Family Code of Ukraine, responsibility for late payment of alimony is provided for, in particular, in the form of a penalty (penalty) in the amount of 1% of the amount of unpaid alimony for each day of delay. The calculation is carried out from the day of the alimony payment delay until the day of its full repayment or until the day of the court’s decision on the collection of fines, but not more than 100 percent of the arrears.
In accordance with Part 14 of Article 71 of the Law of Ukraine “On Enforcement Proceedings”, if there is arrears for the payment of alimony, the aggregate amount of which exceeds the sum of the corresponding payments for one year, the executor issues a resolution imposing a fine on the debtor in the amount of 20 percent of the amount of arrears for the payment of alimony.
If there is arrears for the payment of alimony, the total amount of which exceeds the amount of the corresponding payments for two years, the executor issues a resolution imposing a fine on the debtor in the amount of 30 percent of the amount of arrears for the payment of alimony.
If there is arrears for the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for three years, the executor issues a resolution imposing a fine on the debtor in the amount of 50 percent of the amount of arrears for the payment of alimony.
In the future, a decision on the imposition of a fine in the amount determined by the first paragraph of this part is issued by the executor in case of an increase in the amount of the debtor’s debt by an amount whose total amount exceeds the amount of the corresponding payments for one year.
The amounts of fines provided for in this part are collected from the debtor in the manner provided by this Law and transferred to the debt collector.
In addition, it should be remembered that non-payment of alimony is subject to administrative (Article 183-1 of the Code of Ukraine on Administrative Offenses) and criminal (Article 164 of the Criminal Code of Ukraine) liability.
Thus, during the period of martial law, alimony contracts and all court decisions on collection are subject to mandatory execution and there are no exceptions in terms of improper execution and exemption from any type of responsibility.
Collection of alimony from military personnel
According to the current legislation, there are no restrictions on the collection of alimony from military personnel.
Thus, the CMU Resolution No. 122 of February 16, 2022 “On Amendments to the Resolution of the Cabinet of Ministers of Ukraine No. 146 of February 26, 1993” established that from the servicemen of the Armed Forces of Ukraine, other military formations formed in accordance with the laws of Ukraine, State Special Communications , the State Border Guard Service, police officers, members of the rank-and-file and senior staff of internal affairs bodies and units, the National Anti-Corruption Bureau, the State Bureau of Investigation, the State Security Service, the Civil Protection Service and the State Criminal Enforcement Service, employees of the Judicial Protection Service, maintenance of alimony is carried out from all types of financial support, except non-permanent financial support and other cases provided for by law.
Thus, servicemen pay alimony on a general basis and from all types of financial support (except for those that are not permanent in nature). That is, alimony payments are not deducted from such monetary support as “combat”.
In my deep conviction, the corresponding changes made, in terms of not taking into account monetary support that is not of a permanent nature, contradict the provisions of part 1 of the List of types of income that are taken into account when determining the amount of alimony for one of the spouses, children, parents, other persons, approved by a resolution of the Cabinet of Ministers of Ukraine dated February 26, 1993 No. 146, and violate the right of children to decent material maintenance.
Payment of alimony by FOPs and the unemployed
For this category of alimony payers, the legislation provides that alimony arrears of the alimony payer who did not work at the time the alimony arose or is a natural person – an entrepreneur and is on the simplified taxation system, or is a citizen of Ukraine who receives earnings (income) in the state, with with which Ukraine does not have a legal aid agreement, is determined based on the average salary of an employee for a given area. As for FOPs that are on the general taxation system, alimony is calculated from the net taxable income, however, the amount of alimony cannot be less than 50% of the subsistence minimum for a child of the appropriate age.
In view of the above, regardless of whether a person is unemployed or has no income as a self-employed person who is on a simplified taxation system, the obligation to pay alimony remains.
The current legislation of Ukraine also provides for the contractual settlement of the issue of alimony payment by concluding an alimony agreement, which determines the amount, terms and procedure for payment of alimony and additional expenses for the child. Such an agreement is subject to notarization. The alimony contract is very relevant today, because parents can determine the amount of alimony both during martial law and after its termination.
Thus, the martial law did not affect the issue of alimony payments and their collection, as well as the possibility of initiating new legal disputes. Alimony obligations have not undergone any preferences on the part of the legislator, and therefore are mandatory.
2. Disputes regarding participation in raising a child: is it possible to resolve them? (including contractual settlement).
The current legislation of Ukraine provides for several ways of resolving a dispute regarding participation in the upbringing of a child: it is a contractual settlement and compulsory (with the help of a court and a guardianship authority).
The most urgent problem in the period of martial law is the resolution of disputes regarding the participation of one of the parents in raising a child, especially when moving across the territory of Ukraine or crossing the state border of Ukraine with a child with one of the parents.
Currently, one of the most common ways to resolve a dispute regarding participation in the upbringing of a child is the conclusion of an agreement on participation in the upbringing of a child, in which parents determine how the right to contact one of the parents with the child will be exercised, in what forms and terms. Such an agreement is subject to notarization. Contractual settlement is relevant today, because parents can determine the amount of parental responsibility both during martial law and after its termination.
If the parents have not settled the issue of the participation of one of the parents in the upbringing of the child in a contractual manner, then a coercive procedure is applied: by means of an appeal to the court or to the body of guardianship and guardianship. As we know, the resolution of this dispute is possible only if the actual location of the child is established.
The question arises: how can the actual location of a child who is internally displaced or crossed the border with the other parent be established; is it possible to ensure the right to contact with the child? There are no answers to these questions, practice builds them.
If the child is registered as an internally displaced person, it is possible to obtain information from the Unified Information Database on Internally Displaced Persons in order to establish the location of the child. To do this, it is necessary to contact the Ministry of Social Policy of Ukraine with a lawyer’s request to provide information on whether the child is registered as an internally displaced person. In case of stay, please provide information from the Unified Information Database on Internally Displaced Persons, about:
the person’s actual place of residence on the date of the application;
the address at which official correspondence or delivery of official correspondence can be conducted with the internally displaced person, and a telephone number.
After receiving the specified information, you can apply to the Guardianship and Guardianship Authority with a statement on establishing methods of participation in the upbringing of the child, or to the court with a claim statement.
Regarding the location of children who have crossed the border with one of their parents, it is possible to apply for an administrative procedure with the help of the Department of Justice with a statement in the order of cooperation between states, which is provided for by the Convention on Civil Legal Aspects of International Child Abduction.
Situation from practice: a child crossed the state border of Ukraine on February 25, 2022, together with his grandmother, without the consent of his parents. We appealed to the National Police of Ukraine with a statement about the abduction of a child. As part of the criminal proceedings, the investigator turned to the Department of International Police Cooperation of the National Police of Ukraine in order to establish the actual location of the person and the child. Currently, a request has been sent to the General Secretariat of Interpol. We are waiting for information about the actual location of the child.
Therefore, during the martial law, all the constitutional and laws of Ukraine rights of children and parents are preserved, at the same time, the protection of such rights requires a creative and individual approach on the part of lawyers.